NIA seeks special powers to go undercover: Is it a tough call for the Modi govt?

By A. Mirsab,,

New Delhi: The apex anti-terrorism investigative agency of India – the National Investigative Agency (NIA) – recently applied to the government for grant of special powers for conducting undercover operations in terrorism-related investigations.

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As per a report published in Hindustan Times the NIA was prompted to push for such a ‘radical’ move to seek protection from criminal liability taking heed from Intelligence Bureau officers who were charged by the Central Bureau of Investigation (CBI) in the Ishrat Jahan encounter case for their alleged undercover operation.

Protest in Okhla against detention of Muslim youth

If granted, these special powers will alienate investigating officials from a criminal liability if they are found to be involved in a case, no matter if their involvement was merely for their undercover investigative agenda for unraveling the case. Prima facie it may appear that granting such powers to NIA for carrying out undercover operations – including infiltrating outfits that are deemed a threat to the national security – will help in cracking anti-national terror conspiracies.

But there is a catch to it

In a violence-prone vulnerable country such as India where a number of Muslim organizations are accused and alleged of running terror outfits, there are saffron outfits such as VHP and Bajrang Dal too that have number of times raised issues or carried out acts that are tangibly against the constitution.

So, if at all the Narendra Modi government clears this proposal, it will mean that the NIA will have powers to infiltrate these organizations and charge them for anti-national acts on the basis of established constitution and laws. The NIA has already arrested some former and current RSS members for their alleged involvement in the terror acts in Samjhauta blast, Malegaon blast, Ajmer blast and Mecca Masjid blast cases. With special powers, the NIA will be empowered to infiltrate any right wing organization for further investigation.

Chances are that the BJP-led NDA government may impede the NIA from charging any right wing activist by not providing prosecution sanction but it cannot stop NIA from carrying out the investigation through undercover operations against them. This brings forth two possibilities: the investigation records and details are liable to become public any day (most likely leaked) and second, the same records, data and details can always be used when the government of the day changes.

After all a constitutionally elected government cannot categorically direct that the NIA restrict its investigations to non-right wing outfits only. Therefore it is unlikely that the NIA’s plea will be entertained so easily by the government.

The special powers

The NIA officials, at present, are protected by the special NIA Act 2008 which was introduced immediately after its formation on December 31, 2008 soon after the 26/11 attack in Mumbai.

The said Act empowers the NIA officials to investigate into cases pertaining to anti-national matters anywhere in the country, but it does not impart the agency with any powers that can alienate its investigators from criminal liability if they themselves are found involved in such activity, even if the involvement might be merely for the undercover operation for unraveling the case.

According to the report mentioned above, an anti-terror investigator had told the HT reporter: “In absence of legal protection for undercover operators, sometimes law enforcement agencies are tempted to fabricate evidence to prove its charges against terror suspects, which results in collapse of trial against them. If undercover operations are given legal sanctity, it may help in better prosecution of terror suspects with strong evidence being brought against them in the court.”

Such safeguards are guaranteed to the FBI in USA and MI6 in the UK. The USA has empowered the FBI to infiltrate any suspicious outfit in the country for carrying out undercover operation through Patriotic Act 2001 introduced after 9/11 attack. Both these agencies have claimed to have recorded some success in unearthing terror activities through undercover operations.

The officer infiltrates a terror outfit and/or portrays as someone with contacts at the right places, claim that he can arrange explosives for the act of terror. While discussing the terror plan with an individual or a group, he actually gathers evidences and in the end, arrests the individual or the group. ‘Terror stings’ as famously described by award winning journalist US Trevor Aaranson are a common method to trap terrorist but liable to be misused.

Use or Misuse

In a write up about his book ‘Inside the Terror Factory’ published in January 2013. Aaranson has described how the FBI has built a vast network of informants to infiltrate Muslim communities and, in some cases, cultivate phony terrorist plots. He raised a pertinent point. Questioning the modus operandi of FBI sleuths and their claims that ‘they are protecting Americans with these operations’, Aaranson asked: “But from whom? Real terrorists, or [those] who appear unlikely to have the capacity for terrorism were it not for FBI providing the opportunity and the means?”

Post 9/11 discourse in the US’s top law enforcement agency went beyond the traditional focus of investigating the crimes after they occur to an intelligence organization that tries to pre-empt crimes before they occur. Giving out examples of how unsuspecting youth – who otherwise were dimwitted enough to not even steal a car – were lured into this plot, then prosecuted and sent to jail for 20 or more years, Aaranson junks the very theory of terror stings. “How many of these would-be terrorist would have acted were it not for an FBI agent provocateur helping them? Is it possible that the FBI is creating the very enemy we fear?” he asked.

Aaranson tracked terrorism-related cases in the US and he found that “few of the more than 150 defendants indicted and convicted this way since 9/11 had any connection to terrorists, evidence showed, and those that did have connections, however tangential, lacked the capacity to launch attacks on their own. Of the more that 150 defendants, an FBI informant not only led one of every three terrorist plots, but also provided all the necessary weapons, money, and transportation.”

Understandably, the ‘infiltrator’ technique has been largely condemned by the Muslims in general and civil rights organizations as whole throughout the world but both the USA and the UK continue to impart special powers to FBI and the MI6 due to apparent results and ease in getting convictions.

The NIA in India wishes to imitate these agencies in tackling anti-national activities and hence urged the new government for empowering it in the same regard as that of FBI and MI6.

And there lies another catch

The Indian agencies are already drawing flak for unlawful arrests/detention of scores of Muslim youth on suspicion about their alleged involvement in terror activities. Fake encounter – such as that of Ishrat Jahan – is another area where too the agencies and the police in general have faced criticism for misusing the law.

So if the special powers sought are granted, in effect, going beyond a ‘fake encounter’, the ‘terror sting’ is likely to be very much misused to arrest innocent youths. Dangerous scenario for a democratic country where innocents – be they belong to right wing groups or left wing organizations or Muslim outfits – are arrested on suspicion and made accused in false cases.

This ‘special power’ will just embolden the officers.